The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LILLIE M. MIDDLEBROOKS, DOCKET NUMBER
Appellant, PH-3330-13-0191-I-2
v.
OFFICE OF PERSONNEL DATE: September 30, 2014
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lillie M. Middlebrooks, Fairfax, Virginia, pro se.
Joyce B. Harris-Tounkara, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her Veterans Employment Opportunities Act of 1998 (VEOA) claim for
lack of jurisdiction. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; the initial
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
decision is based on an erroneous interpretation of statute or regulation or the
erroneous application of the law to the facts of the case; the judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review. For the reasons
set forth below, we VACATE the initial decision’s finding that the Board lacks
jurisdiction over this appeal and DENY the appellant’s request for corrective
action.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant applied to the position of Legal Assistant, Office Automation
(Vacancy Announcement # PH-12-PG-641655) at the Department of Justice
(DOJ). Refiled Appeal File (RAF), Tab 5, Subtab 2i. The agency adjudicated the
appellant’s veterans’ preference with respect to the application and found that she
was entitled to a 10-point veterans’ preference. Id., Subtab 2c. The agency found
that the appellant was not eligible for the position to which she applied. Id.,
Subtab 2k. In response, the appellant filed a complaint with the Department of
Labor (DOL). DOL conducted an investigation and concluded that the
appellant’s veterans’ preference had been properly adjudicated. Id., Subtab 2n.
DOL therefore closed its investigation and notified the appellant of her Board
appeal rights. 2 Id.
2
The appellant has filed this appeal against the Office of Personnel Management
(OPM) and not against DOJ. OPM, as opposed to DOJ, adjudicated the appellant’s
3
¶3 The appellant filed a Board appeal alleging that the agency had violated her
veterans’ preference rights when it failed to put her on the eligible list at the
GS-05, GS-06, GS-07, and GS-08 levels. Initial Appeal File (IAF), Tab 1 at 5.
She also alleged that the agency failed to credit her with the experience she
gained in the military and in paralegal school. Id. at 5-6. The agency responded
that the appeal should be dismissed because the appellant failed to demonstrate
that she was minimally qualified for the position at the GS-08 level and she had
not submitted an application for the position at any lower grade. RAF, Tab 5,
Subtab 1 at 4-6.
¶4 In her initial decision, the administrative judge dismissed the appeal for
lack of jurisdiction, finding that the appellant had failed to nonfrivolously allege
that the agency violated her veterans’ preference rights. RAF, Tab 6, Initial
Decision (ID). She found that the agency had adjudicated the appellant’s
veterans’ preference properly but that the appellant was found not minimally
qualified for the position for which she applied. Id. at 3-5.
¶5 On petition for review, the appellant alleges that her experience as a party
in a variety of litigation renders her qualified for the position to which she
applied. 3 Petition for Review (PFR) File, Tab 1 at 5, 11-47. In support of this
argument, she has included associated records. Id. We do not consider this
evidence because the appellant has not shown that it was unavailable before the
record was closed despite her due diligence. See Davis v. Department of
veterans’ preference and determined that she was not eligible for the position. See
RAF, Tab 5, Subtabs 2c, 2k. Additionally, DOL investigated the claim through contact
with a representative from OPM. Id., Subtabs 2l, 2m. After the investigation, DOL
also sent a closeout letter to the appellant stating that it had determined that the
evidence did not support her allegation that DOJ violated her veterans’ preference.
However, DOL sent notification of this closeout letter to OPM. Id., Subtab 2n.
3
The appellant argues for the first time on petition for review that her appeal includes a
claim under the Uniformed Services Employment and Reemployment Rights Act of
1994 (codified at 38 U.S.C. §§ 4301-4333) (USERRA) and that the administrative judge
failed to adjudicate her claim. PFR File, Tab 1 at 8. We FORWARD this claim to the
regional office for docketing as a new USERRA appeal.
4
Commerce, 120 M.S.P.R. 34, ¶ 16 (2013); 5 C.F.R. § 1201.115. The appellant
also argues that she is entitled to a hearing and to conduct discovery with respect
to her claim. 4 PFR File, Tab 1 at 4.
¶6 The record shows that the appellant exhausted her remedy with DOL, that
she is a preference eligible, and that the nonselection took place after October 30,
1998. RAF, Tab 5, Subtabs 2c, 2i, 2l-2n. Therefore, the only remaining
jurisdictional inquiry is whether the appellant nonfrivolously alleged that the
agency violated her rights under a statute or regulation related to veterans’
preference. See Miller v. Federal Deposit Insurance Corporation, 121 M.S.P.R.
88, ¶ 6 (2014). An appellant need not state a claim upon which relief can be
granted in order to establish jurisdiction. Id. Instead, an appellant’s allegation,
in general terms, that her veterans’ preference rights were violated is sufficient to
meet the nonfrivolous allegation requirement. Id.
¶7 We find that the appellant has nonfrivously alleged that the agency violated
her veterans’ preference rights. The vacancy announcement stated that veterans’
preference would be considered in the selection. RAF, Tab 5, Subtab 2e. The
appellant argued that the agency violated her veterans’ preference rights when it
failed to place her at the top of the list for the position to which she applied and
for which she argued that she was qualified. IAF, Tab 1 at 1-9. Therefore, the
Board has jurisdiction. Miller, 121 M.S.P.R. 88, ¶ 7.
¶8 Once jurisdiction is established, to prevail on the merits, the appellant must
prove the elements of her VEOA claim by preponderant evidence. Isabella v.
4
In her reply to the agency’s response, the appellant has alleged that the agency’s
response was untimely and should therefore not be considered. PFR File, Tab 4 at 1.
The agency was required to file its response to the petition for review on or before June
21, 2014. Id., Tab 2. Under 5 C.F.R. § 1201.23, if the date that ordinarily would be the
last day for filing falls on a Saturday, Sunday, or federal holiday, the filing period will
include the first workday after that date. Accordingly, because June 21, 2014, was a
Saturday, the agency’s response was timely filed on Monday, June 23, 2014. However,
we find that neither the agency’s response nor the appellant’s reply affects our
disposition in this case.
5
Department of State, 106 M.S.P.R. 333, ¶¶ 21-22 (2007), aff’d, 109 M.S.P.R. 453
(2008). The Board has the authority to decide the merits of a VEOA appeal
without a hearing if there is no genuine dispute of material fact and one party
must prevail as a matter of law. Haasz v. Department of Veterans Affairs, 108
M.S.P.R. 349, ¶ 9 (2008).
¶9 Although the appellant has alleged that the agency did not adjudicate her
10-point veterans’ preference, it is clear that the agency did indeed find her
entitled to a 10-point veterans’ preference. RAF, Tab 5, Subtab 2c. The
appellant argued that she was qualified for the GS-08 position based upon her
military experience, experience with organizational activities, and her paralegal
training. IAF, Tab 1 at 5. However, the agency found that the appellant had not
demonstrated that she was qualified for the GS-08 position for which she applied
because the position required at least 1 year of experience equivalent to the
GS-07 level; education could not be substituted for experience. RAF, Tab 5,
Subtabs 2k, 2m.
¶10 A preference eligible is entitled to credit for experience gained in religious,
civic, welfare, service, and organizational activities, regardless of whether pay
was received therefore. Lazaro v. Department of Veterans Affairs, 666 F.3d
1316, 1318-19 (Fed. Cir. 2012). The Board has jurisdiction to determine whether
an agency properly considered all such experience in determining that a
preference eligible was not qualified for the position at issue. Id. However, the
Board will not engage in a fact-based review of how an agency weighed and
assessed a preference-eligible’s experiences. Miller, 121 M.S.P.R. 88, ¶ 12.
¶11 We find that the agency considered the appellant’s experience in
determining whether she was qualified for the position. However, her prior
experience involved military nursing. RAF, Tab 5, Subtab 2g. Additionally,
without addressing the appellant’s argument that her paralegal training involved
creditable experience, it is clear from her application that she began the program
in August 2011 and had not been in the program for a year at the time of her
6
application in June 2012. Id. We therefore find no reason to disturb the agency’s
determination that the appellant did not possess the requisite 1 year of
experience. 5 See Miller, 121 M.S.P.R. 88, ¶ 14. We find that the appellant’s
nonselection provides no basis for relief under VEOA because she was not
qualified for the position to which she applied. See Dale, 102 M.S.P.R. 646, ¶ 13
(VEOA does not provide that veterans will be considered for positions for which
they are not qualified).
¶12 With regard to the appellant’s arguments concerning her inability to
conduct discovery, it is clear that the administrative judge informed her of
discovery procedures in the acknowledgment order. IAF, Tab 2 at 4. However,
the appellant failed to file a motion to compel discovery, and we find no error or
abuse of the administrative judge’s broad discretion to control proceedings. See
Williams v. Department of the Navy, 94 M.S.P.R. 206, ¶ 5 n.4 (2003) (the
administrative judge did not deny the appellant discovery where the appellant
failed to follow the discovery regulations or file a motion to compel with the
administrative judge), aff’d, 89 F. App’x 724 (Fed. Cir. 2004). We have
considered the appellant’s remaining arguments; however, we do not find a basis
upon which to grant her petition for review. In our discretion, we dispose of the
appeal without holding the hearing requested by the appellant because there is no
genuine dispute of material fact and she is not entitled to relief as a matter of law.
See Haasz, 108 M.S.P.R. 349, ¶ 10.
5
We do not address the appellant’s complaint that she was not placed on the
certification for each grade, GS-05, GS-06, and GS-07, because she does not dispute
that she applied only for the GS-08 position. RAF, Tab 5, Subtabs 2i, 2k; see Dale v.
Department of Veterans Affairs, 102 M.S.P.R. 646, ¶ 13 (2006).
7
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
8
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.